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Desh Deepak Kapoor Vs. The State (Delhi Administration)

Judgement

 
Court:Delhi High Court

Bench: JUSTICES M B Lokur, A Suresh

PARMANAND MISHRA Vs. REKHA MISHRA On 13 May 1994

Law Point:
In order to substantiate a charge under Section 498A IPC, prosecution to prove that there was a demand for dowry, failure whereof renders conviction there-under unsustainable.

 

 

JUDGEMENT

 

1. The Appellant has challenged the judgment and order dated 5th April, 1997 delivered in Sessions Case No. 21/96, whereby the learned Additional Sessions Judge convicted him for an offence under Section 302 and Section 498A of the Indian Penal Code (hereinafter referred as the IPC).

2. Subsequently, the Appellant was heard on the question of sentence and by an order dated 9th April, 1997, he was sentenced to imprisonment for life for the offence under Section 302 of the IPC and to rigorous imprisonment for three years for the offence under Section 498A of the IPC. It was directed that the sentences shall run concurrently.

3. At the outset, it may be mentioned that the case against the Appellant included an allegation of common intention under Section 34 of the IPC involving his father and his mother. However, by the impugned judgment and order, the Appellant’s father was acquitted of both the charges framed against him while the Appellant’s mother died during the course of trial and, therefore, the charges abated against her.

4. The broad facts of the case are that the Appellant was married to deceased Varsha on 15th May, 1981. According to the prosecution, the Appellant used to mentally and physically torture the deceased with a view to compelling her to meet unlawful demands for dowry.

5. It is alleged that on 29th October, 1987, the Appellant and his parents set fire to Varsha as a result of which she died on 3rd November, 1987. At the time when the deceased was set on fire, her two children Lucky and Bunty were also in the room and while Lucky was dragged out by his grandparents, Bunty clung to his mother and sustained some burns. He survived the episode but during the course of hearing we were told that unfortunately he has recently passed away after some illness. Lucky was, at that time, about seven years of age and now lives with his maternal grand parents.

6. According to the prosecution, the deceased gave a dying declaration Exh.PW-9/A which was recorded by the Sub Divisional Magistrate, Punjabi Bagh, Delhi. She also narrated the incident, as another dying declaration, to her brother and her parents. On the basis of these statements and investigations conducted by the State, a report was filed under Section 173 of the Code of Criminal Procedure (hereinafter referred to as the CrPC) and thereafter the following charges were framed against the Appellant and his parents:

In between 15.5.81 to 29.10.87 at WZ-1676-A, Multani Mohalla within the jurisdiction of P.S. Saraswati Vihar in furtherance of common intention of you all, mentally/physically tortured the deceased Smt. Varsha to meet your unlawful demands of dowry etc. and thereby committed an offence punishable Under Section 498-A r/w 34 IPC and within the cognizance of this Court of Sessions.

Secondly on 29.10.87 at morning time at premises No. WZ 1676-A, Multani Mohalla in furtherance of common intention of you all, committed murder of Smt. Varsha by burning her and thereby committed an offence punishable Under Section 302/34 IPC and within the cognizance of this Court of Sessions.

7. The Appellant as well as his parents pleaded not guilty and so the case went to trial. The State examined as many as 26 witnesses and the accused persons produced two witnesses in their defense. The Appellant and his father also gave their statement under Section 313 of the CrPC.

8. We propose, initially, to deal with the first charge and thereafter to deal with the second charge against the Appellant.

9. In so far as the first charge is concerned, namely, that of a dowry demand, it is necessary to reproduce Section 498A of the IPC. This section reads as follows:

498A. Husband or relative of husband of a woman subjecting her to cruelty. – Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation. – For the purpose of this section, “cruelty” means-

(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

10. A plain reading of the above provision clearly shows that the charge framed against the Appellant falls under Clause (b) of the Explanation. Therefore, to substantiate this charge, the State was required to show that there was a demand for dowry.

11. We have been taken through the evidence on record and unfortunately there is nothing to show that any demand was made for dowry from the Appellant. Learned Counsel for the State drew our attention to two documents which, according to him, substantiate the demand for dowry. The first document is Exh.PW-23/A (as translated) which is an application dated 18th March, 1986 made by the deceased to the Deputy Commissioner of Police, Crime Against Women Cell in Delhi. In that application, she states that her husband is working as a khalasi with the Railways and is addicted to intoxicants. He spends his salary on drinks and asks the complainant to bring maintenance from her parents’ house every month. She further complains that apart from consuming liquor, the Appellant consumes charas and opium and beats her when she complains about this to her in-laws. She expresses an apprehension that her husband might become addicted to smack. In this regard, she says as follows:

My husband consumes liquor, charas (tobacco like intoxication) and opium and beats me when I complain about the same to my parents in laws, they express their inability to do anything. They also say that all consume liquor. I am scared lest my husband should become addict to smack. I am always asked to bring more dowry. They say that my parents have not given anything. My parents give me two/three hundred rupees per month and they have also given me a knitting machine last year. My husband asks me as to why my mother has given this machine to me and that I should earn and give him rupees one thousand every month under these circumstance what should I do?

12. We find that the reference to a demand for dowry is of an extremely general nature and even then it is not directed against the Appellant, but in the context in which it is made, the complaint is against the parents of the Appellant. As against the Appellant, the grievance seems to be of consuming intoxicants, and not of making any demand for dowry.

13. The above complaint of the deceased was looked into by the police and on 30th April, 1986, the Appellant made a statement before the police, which is Exh.PW-23/C (as translated), to the effect that he will not consume intoxicants in future and will keep his wife decently. He also said that he will bring essential commodities in the house and shall give no cause of complaint in future. This statement fortifies our view that as far as the Appellant is concerned, there was no grievance against him that he was demanding dowry. The matter appears to have ended there because by virtue of Exh.PW-23/B, the deceased withdrew her application and did not want any action to be taken on that.

14. Soon thereafter, on 30th June, 1987, the deceased made another complaint to the police authorities which is Exh.PW-17/D (as translated) to the effect that her name does not appear in the ration card and her father-in-law does not allow her to get her own ration card prepared. She also says that her husband used to beat her at the instance of her father-in-law and that her husband consumes charas etc. Significantly, there is no mention of any demand for dowry in this complaint. In any case, the police looked into the matter and advised the deceased to lodge a complaint with the office of the Deputy Commissioner of Police in the Women’s Cell, but it appears that no such follow up action was taken up by the deceased.

15. The father of the deceased Har Gopal entered the witness box as PW-6. In his examination-in-chief, he states that about one and a half years after the marriage of his daughter with the Appellant, she was being pestered for not having brought sufficient dowry and more dowry was demanded. The witness stated that he could not meet their demands because he had eight children. The Appellant and his parents used to harass and mistreat the deceased when their demands for more dowry could not be met. The witness does not mention any specific demand having been made for dowry, the statement being of a vague and very general nature. In his cross-examination, the witness admitted that he has not lodged any report with the police about the alleged dowry demand and eventually towards the end of his cross-examination, he admitted that the Appellant and his parents “never personally demanded dowry from me or my wife. They were always through the deceased. It is wrong that no dowry demand was made or that I am deposing falsely. I did not lodge any report with the police for dowry demand from the deceased with the police.”

16. From the above evidence (and no other evidence has been pointed out to us in this regard), it is clear that the Appellant or his parents made no specific demand for dowry and secondly even if there was a demand, it was not a direct demand but routed through the deceased.

17. Unfortunately, in the present case, the learned Trial Judge has proceeded in a completely different direction, on the basis of an assumption that the Appellant had committed cruelty as per Explanation (a) to Section 498A of the IPC. He has concluded that the Appellant’s conduct was such that he had caused physical and mental hurt to the deceased and that there was always a danger to her life, limb and health during the subsistence of the wedlock. The only discussion that the learned Trial Judge has attempted in regard to Explanation (b) is in his conclusion that the Appellant is also proved to have harassed his wife with a view to coercing her and her parents to meet unlawful demands in money terms or in kind. There is no discussion of any evidence in support of this conclusion except in the context of Explanation (a) [and not Explanation (b)] to Section 498A of the IPC. Since the conclusion arrived at by the learned Trial Judge is not supported by any evidence or any reason, we are not in a position to uphold the conviction of the Appellant for an offence under Section 498A of the IPC.

18. We also find that the allegations made in this regard by the deceased (directed against the parents of the Appellant) are extremely vague and general. In view of this, we find it unsafe to base a conviction against the Appellant on vague and general allegations made against his parents. The primary grievance of the deceased was of the Appellant’s addiction to intoxicants and his inability to adequately provide for his family. The complaints dealt with above do not relate to dowry demands except by way of a passing allegation, and that too against the parents of the Appellant. Even then, the first complaint made by the deceased, that is, Exh.PW-23/A dated 18th March, 1986 was settled between the parties and the second complaint which is Exh.PW-17/D dated 30th June, 1987 does not mention anything about a demand for dowry.

19. As regards the second charge under Section 302 IPC, the learned Trial Judge relied upon the Report of the Central Forensic Science Laboratory (for short the CSFL) to the effect that the skull hair and clothes of the deceased had a residue of kerosene. Reliance was also placed upon the testimony of PW-3 Lucky, the son of the deceased. The learned Trial Judge disregarded the dying declaration given by the deceased before the Sub Divisional Magistrate on the ground that it was unreliable and did not inspire any confidence. Similarly, the learned Trial Judge found that there were material discrepancies in the dying declaration as narrated by her brother and parents and, therefore, the learned Trial Judge also discarded this. The State has not appealed against any of these findings and so we have to proceed on the basis that the statement of PW-3 (Lucky) and the presence of kerosene as per the CFSL Report are the only incriminating material against the Appellant.

20. Before discussing the testimony of PW-3, we may note that he and his younger brother Bunty were the only two eyewitnesses to the incident. Bunty was not brought to the witness box and we do not think that this is a significant omission because we should really be concerned with the quality of the testimony rather than the number of witnesses. The Supreme Court has said in Ram Prasad v. State of U.P. that the effect of the non-examination of a particular witness would depend on the facts and circumstances of each case. In Krishna Mochi v. State of Bihar (2002) 6 SCC 681 it was said, It is well settled that in a criminal trial credible evidence of even a solitary witness can form the basis of conviction and that of even half a dozen witnesses may not form such a basis unless their evidence is found to be trustworthy. In the matter of appreciation of evidence of witnesses, it is not the number of witnesses, but the quality of their evidence which matters.

Proceeding on this basis, we are of the opinion that if the testimony of PW-3 is reliable, then no adverse can be drawn against the prosecution for not producing his younger brother in the witness box.

21. Learned Counsel for the Appellant submitted that PW-3 Lucky ought not to be believed for two principal reasons. He submitted that apart from the fact that he was a child witness, the police recorded his statement only on 16th November, 1987 which was more than two weeks after the incident. It was submitted that during this time, PW-3 was staying with his maternal grand parents and they had tutored him to speak up against the Appellant. The second contention was that the role attributed to the Appellant as stated by PW-3 in Court was not put to him when his statement was recorded under Section 313 of the CrPC. In this regard, reliance was placed on paragraph 143 of Sharad Birdhichand Sarda v. State of Maharashtra 1984 SCC (Crl) 487.

22. The deceased is said to have given a dying declaration to her brother and parents. According to her brother PW-2 Triloki Nath, she stated that the Appellant and his mother had pushed her on a burning stove. The father of the deceased PW-6 Har Gopal, stated that according to the deceased, the Appellant, his mother and father had all pushed the deceased on the burning stove. The mother of the deceased PW-7 Smt. Krishna Kumari stated that the deceased had said that she had been pushed on the stove by her mother-in-law. It is primarily in view of this contradiction that the second dying declaration of the deceased has not been believed by the learned Trial Judge.

23. PW-3 Lucky, the eyewitness, gave a rather more elaborate account of the incident and stated that the Appellant had poured oil on the deceased as a result of which she stopped cooking and thereafter there was a quarrel between them. When the quarrel escalated, his grand parents entered the room and joined in the quarrel. When the deceased tried to stand up, his grand mother pushed her on the stove. In other words, the version of PW-3 is that the Appellant had poured oil on the deceased and his mother had pushed her on the burning stove and that is how the deceased caught fire and subsequently died.

24. The essential facts stated by PW-3 Lucky are in consonance with what has been stated by the three witnesses mentioned above, although it must be noted that these witnesses have not been believed on the issue of the dying declaration made by the deceased to them. We have the option to simply disbelieve Lucky because the learned Trial Judge has disbelieved the three witnesses or to carefully scrutinize his testimony independently since he is the only witness to the incident. We have taken the second option because the Supreme Court has said, in Ratansinh Dalsukhbhai Nayak v. State of Gujarat that, Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaken and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness.

25. In so far as the present case is concerned, there is no doubt that PW-3 was the only eyewitness to the incident and a bare reading of his testimony does suggest that what he has spoken is true and acceptable. He has described in detail the events that took place on the morning of 29th October, 1987, namely, that his mother was cooking food in the kitchen while he was sitting in the room on a cot. His younger brother Bunty was getting ready to go to school. While the deceased was cooking food, the Appellant had gone to the market to purchase some oil. Thereafter, the Appellant poured oil on the deceased and they began quarreling. As soon as the oil was poured on the deceased, she stopped cooking. At that time, neither of the grandparents was in the room but they soon came there and the Appellant’s mother began quarreling with the deceased and when the quarrel continued and the deceased tried to stand up, she was pushed on the stove by the Appellant’s mother. We find no apparent reason to disbelieve this statement of PW-3 Lucky.

26. On a careful consideration of the facts of the case and a careful scrutiny of the testimony of Lucky, we find that according to the version given by the three witnesses (as narrated to them by the deceased) the Appellants mother had pushed the deceased on the stove. There is some doubt about whether or not the Appellant had also pushed her on the stove. This is resolved by Lucky who stated in the cross-examination that his father had only poured kerosene on the deceased. Consequently, he absolves him of the act of pushing her on the stove. Under these circumstances, it certainly cannot be said that his maternal grand parents tutored Lucky to implicate the Appellant, as contended by learned Counsel. On the contrary, this leads us to believe that what Lucky narrated in his cross-examination was actually what transpired. He has steered away from falsely implicating his father, belying the argument advanced by learned Counsel for the Appellant that Lucky should be disbelieved due to tutoring.

27. We may also note that in respect of the contention of learned Counsel for the Appellant that Lucky had been tutored by his maternal grand parents, there is nothing to suggest this except the bald contention urged. We also do not find any such contention having been raised before the learned Trial Judge and, therefore, we reject this argument advanced before us and accept the testimony of PW-3 Lucky.

28. We may also refer to Suryanarayana v. State of Karnataka wherein the Supreme Court has said, in relation to discrepancies in the testimony of a child witness, that Some discrepancies in the statement of a child witness cannot be made the basis for discarding the testimony. Discrepancies in the deposition, if not in material particulars, would lend credence to the testimony of a child witness who, under the normal circumstances, would like to mix-up what the witness saw with what he or she is likely to imagine to have seen. While appreciating the evidence of the child witness, the courts are required to rule out the possibility of the child being tutored. In the absence of any allegation regarding tutoring or using the child witness for ulterior purposes of the prosecution, the courts have no option but to rely upon the confidence inspiring testimony of such witness for the purposes of holding the accused guilty or not.

Consequently, a discrepancy in the statement of Lucky recorded under Section 161 of the CrPC with his testimony in Court, can certainly be overlooked, particularly in the absence of any tutoring and if his testimony in Court is otherwise found to be reliable.

29. Learned Counsel for the Appellant submitted that there was some discrepancy between the statement given by this witness in Court and the statement given by him under Section 161 of the CrPC on 16th November, 1987. The discrepancy related to the role of the Appellant and his father in setting the deceased on fire. However, the learned Trial Judge has rightly observed, relying upon Pandappa Hanumappa Hanamar v. State of Karnataka 1997 SCC (Cri.) 811 that even if there are any minor discrepancies and contradictions or improvements in the version of the witnesses, they have to be ignored if they are corroborated in material particulars by other evidence. What the other corroborative evidence in this case is will be adverted to a little later.

30. The second contention of learned Counsel for the Appellant was that there is no evidence of any kerosene having been poured on the deceased. For this, learned Counsel relied upon the statement of PW-15 Dr. Raj Kumar who performed the autopsy on the deceased. He said that there was no smell of kerosene felt from the skull hair or body. Based on this statement, it was contended that the story of kerosene having been poured on the deceased is totally incorrect.

31. However, we find that when the deceased was admitted in hospital, it was noted that she was alleged to have been burnt by sprinkling kerosene oil and that she had 90% burns. This is so stated by PW-24 Dr. Sunil Sabharwal who was working in the Casualty Department of the Northern Railway Hospital at that time. The clothes of the deceased and her hair were sent to the CFSL and the Report given by it (Exh.PW-26/A) clearly states that the physico-Chemical method of analysis of the clothes and hair shows the presence of kerosene residue.

32. In the face of this, it is not proper to give undue weightage to the statement of PW-15 that there was no smell of kerosene emanating from the body of the deceased. Even if there was no such smell, it hardly makes a difference, as long as the CFSL Report says that the skull hair and clothes of the deceased had kerosene residue. Moreover, since the post mortem was conducted after about six days, it is natural that kerosene oil smell had ceased because of exposure.

33. The presence of kerosene residue lends corroboration to the statement given by PW-3 Lucky to the effect that the Appellant poured kerosene on the deceased before she was pushed on the burning stove. Consequently, looking at the facts in their totality, we are of the opinion that there is no doubt that the Appellant poured kerosene oil on the deceased and that she was then pushed on the burning stove as stated by Lucky.

34. Learned Counsel for the Appellant submitted that the stove was not in a proper working order. It was examined by the CFSL and it showed the presence of leakage at fuel inlet joint and pressure release screw knob resulting in decrease of air pressure in fuel tank. As such, according to the CFSL, it was not in normal working order. We are of the view that this is of no consequence. It is nobody’s case that the deceased caught fire in a manner other than through a burning stove. Consequently, even if the stove was not in normal working order at the time of its examination, it does not necessarily mean that it was not working properly when the deceased caught fire. In fact, if the stove were not working properly, the deceased would not have even used it for cooking purposes.

35. It was also submitted by learned Counsel for the Appellant that the MLC was prepared by one Dr. Sharma but even though he was available, he has not been summoned to the witness box. However, the Appellant has not pleaded any prejudice to him for non-examination of Dr. Sharma especially when Dr. Raj Kumar, PW-15 has been examined to prove the post mortem report and the cause of death.

36. The final contention of learned Counsel for the Appellant was that the incriminating evidence pertaining to his role in the entire incident was not put to him under Section 313 of the CrPC. As already mentioned above, reliance was placed upon paragraph 143 of Sharad Birdhichand Sarda, which reads as follows:

143. Apart from the aforesaid comments there is one vital defect in some of the circumstances mentioned above and relied upon by the High Court, viz., circumstances Nos. 4, 5, 6, 8, 9, 11, 12, 13, 16 and 17. As these circumstances were not put to the appellant in his statement under Section 313 of the Criminal Procedure Code, 1973 they must be completely excluded from consideration because the appellant did not have any chance to explain them. This has been consistently held by this Court as far back as 1953 where in the case of Hate Singh Bhagat Singh v. State of Madhya Pradesh this Court held that any circumstance in respect of which an accused was not examined under Section 342 of the Criminal Procedure Code cannot be used against him. Ever since this decision, there is a catena of authorities of this Court uniformly taking the view that unless the circumstance appearing against an accused is put to him in his examination under Section 342 of the old Code (corresponding to Section 313 of the Criminal Procedure Code, 1973), the same cannot be used against him. In Shamu Balu Chaugule v. State of Maharashtra this Court held thus: [SCC para 5, p. 440 : SCC (Cri) p. 58] The fact that the appellant was said to be absconding, not having been put to him under Section 342, Criminal Procedure Code, could not be used against him.

37. Of course, there can be no dispute about the proposition laid down by the Supreme Court, but we are of the view that it cannot be applied mechanically to the facts of the present case. While it may be that the specific incident of the Appellant pouring kerosene oil on the deceased was not put to him, but the broad events were put to him in the following manner:

Q.7 It is in evidence against you that you accused D.D. Kapoor demanded shoe from our wife Varsha while she was cooking food and she replied and requested you to take the shoe yourself on which you started quarrelling with her and you accused K.L. Kapur and Smt. Kamla Kapur also reached the scene. What have you to say?

Ans: By K.L. Kapur: It is incorrect. I was not there in the house at that time.

Ans: By D.D. Kapur: It is incorrect.

Q.8 It is in evidence that you accused D.D. Kapur, K.L. Kapur at the above said house started beating Smt. Varsha deceased and threw her on the stove intentionally due to which she caught fire and PW Bunty also received burn injury. What have you to say?

Ans: by K.L. Kapur: It is incorrect.

Ans: By D.D. Kapur: It is incorrect.

38. It is, therefore, not as if the Appellant was completely caught off guard and was not aware of the incriminating material against him. We, therefore, reject this contention urged by learned Counsel for the Appellant.

39. The result of the above discussion is that the Appellant is held not guilty of the offence under Section 498A IPC while he is found guilty of an offence under Section 302 IPC. To this extent, the judgment and order under appeal is modified. We, therefore, confirm the sentence of imprisonment for life under Section 302 of the IPC.

40. In view of the efforts put in by learned amices Curiae, we direct the State to pay him a fee of Rs. 5,500/- within six weeks from today.

Certified that a corrected copy of the judgment has been transmitted in the main Server.

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